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DECREE No

DECREE No.38-CP OF JUNE 25, 1996 OF THE GOVERNMENT ON ADMINISTRATIVE SANCTIONS AGAINST VIOLATIONS OF LABOR LEGISLATION

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to the Labor Code of June 23, 1994;

Pursuant to the Ordinance on the Handling of Administrative Violations of July 6, 1995;

At the proposal of the Minister of Labor, War Invalids and Social Affairs,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- This Decree shall apply to the organizations and individuals that violate labor legislation but not yet seriously enough to be examined for criminal liability.

The labor legislation mentioned in this Decree includes provisions of the Labor Code and documents giving detailed guidance on the implementation of the Labor Code.

Article 2.- The principles of sanctioning violations of labor legislation:

1. Any violations must be promptly discovered and handled. The handling must be conducted rapidly and fairly as stipulated by law.

2. A violation shall be sanctioned only once. A person who commits several violations shall be sanctioned for each of his/her violations. If many persons together commit a violation, each of them shall be sanctioned.

3. The handling of violations must be based on the character and seriousness of the violation, the personality and the attenuating or aggravating factors to decide a suitable form and rate of fining.

4. If a violation involves one of the attenuating factors mentioned in Article 3, it shall be given a 50% reduction of the fining rate set for such violation. If it involves 2 or more attenuating factors, it shall be given a two-thirds reduction of the fining rate set for such violation.

5. If a violation involves one of the aggravating factors mentioned in Article 4, the fining rate set for such violation shall be doubled. If it involves 2 or more aggravating factors, the fining rate set for such violation shall be trebled.

Article 3.- The following factors shall be regarded as attenuating factors:

1. The guilty person has tried to prevent or diminish the damage caused by the violation, or offer to settle the consequences and compensate for the damage;

2. The guilty person is a pregnant woman, a minor, an elderly person, a person who is rendered hardly conscious of or incapable of controlling his/her actions by disease or disability.

3. The person concerned commits the violation in extremely difficult circumstances not created by himself or herself.

4. The person concerned commits the violation out of ignorance.

Article 4.- The following factors shall be regarded as aggravating factors:

1. Organized violations;

2. Repeated violations or recidivism;

3. Infringement on the rights and interests of many laborers;

4. Infringement on the rights and interests of women laborers; minor laborers; handicapped laborers; elderly laborers;

5. Urging or enticing minors to commit violations, compelling those who are materially or spiritually dependent on him or her to commit violations;

6. Committing a violation while being drunk on liquor, beer or other stimulants;

7. Abusing one�s position and powers to commit a violation;

8. Taking advantage of war time, natural disasters or other special social difficulties to commit a violation;

9. Committing a violation while serving a criminal sentence or while carrying out a decision on administrative sanction;

10. Trying to evade the sanction or to cover up the violation after committing it;

11. Refusing to abide by the decisions of the State Inspector on labor.

Article 5.- The statute of limitation for administrative sanction against violations of the labor legislation:

1. The statute of limitation for imposing administrative sanction against violations of the labor legislation is one year, beginning from the date when the administrative violation is committed.

2. With regard to a person against whom a legal action has been taken or who is being prosecuted, or to whom a decision has been issued to stand trial according to the criminal proceedings, but a decision is later issued to cancel the investigation or to cancel the trial, only an administrative sanction shall be imposed if his/her violation shows signs of an administrative violation, the statute of limitation for sanctioning is 3 months beginning from the date when the cancellation decision is issued.

3. Within the time limit set in Items 1 and 2 of this Article, if the individual or organization concerned commits a new violation or deliberately avoids or obstructs the sanction, the statute of limitation set in Items 1 and 2 of this Article shall not apply.

Article 6.- The time limit after which the guilty organization or individual shall be regarded as not yet being sanctioned for administrative violation:

More than a year after the enforcement of the sanctioning decision or after the expiry of the decision, if the organization or individual sanctioned as stipulated in this Decree does not commit another violation, they shall be regarded as not yet being sanctioned for administrative violation of the labor legislation.

Chapter II

VIOLATIONS, FORMS AND RATES OF FINE

Section I. VIOLATION OF THE PROVISIONS ON LABOR RELATIONS

Article 7.- A fine of 200,000 VND shall be imposed on one of the following acts:

1. Violating the stipulations on direct, full and due payment of salaries at the working place; compensation is defined in Article 59 of the Labor Code;

2. Failing to have a change room, a bathroom and a toilet for women where women workers are employed as stipulated in Item 1, Article 116, of the Labor Code;

3. Failing to consult the representative of women workers while deciding issues concerning the rights and interests of women and children as stipulated in Item 1, Article 118, of the Labor Code.

Article 8.- A fine of 400,000 VND shall be imposed on one of the following violations:

1. Paying less than 70% of the salary set for a specific job during the probation period or extending the probation period for more than 60 days for jobs with occupational grades which requires graduate or post-graduate professional and technical level, and for more than 30 days for jobs with occupational grades which requires the knowledge of medium-grade workers, technical workers, specialized employees, and for more than 6 days for other jobs;

2. Violating the stipulations on the period of time for the temporary transfer of a worker to another work or on the payment of wages to laborers during that period as stipulated in Article 34 of the Labor Code;

3. Subtracting laborers� wages without telling them the reason; without consulting the Executive Committee of the Trade Union at the grassroots level; subtracting more than 30% of the monthly wages of laborers at variance with the provisions of Item 1, Article 60, of the Labor Code;

4. The employer fails to sign a labor contract with the laborers; or signs a contract not in conformity with Article 27 of the Labor Code;

As to employers who employ dancers at dancing floors and room-maids and employees at hotels and restaurants without signing a labor contract, they shall be fined in accordance with the provisions of Item 3, Article 15, and Item 2, Article 22, of Decree No.88-CP of December 14,1995 of the Government stipulating sanctions against administrative violations in cultural activities, cultural services and the prevention of a number of social vices.

5. Refusing negotiations to sign or amend or supplement collective labor arrangements after receiving a request from the side that requests negotiations as stipulated in Item 1, Article 46, of the Labor Code;

6. Violating the stipulations on the time limit for suspension of work or on the advance of wage to laborers during the suspension period as stipulated in Article 92 of the Labor Code;

7. The employer fails to pay full wages to the laborers in case the suspension of work is caused by the employer himself or herself as stipulated in Item 1, Article 62, of the Labor Code;

8. The employer pays a bonus which exceeds the total of 6 months� salary plus title allowance and subsidy currently stipulated for State-owned enterprises; or a bonus that is lower than one month�s salary in foreign invested enterprises, and enterprises in export processing zones and industrial parks; or the rate reserved for bonuses lower than 10% of the profits in private enterprises as stipulated in Article 64 of the Labor Code;

9. Paying laborers during the probation period or the training period less than 70% of the wage of the laborers doing the same work as stipulated in Item 2, Article 23, of the Labor Code.

Article 9.- A fine of 1,000,000 VND shall be imposed on one of the following violations:

1. Violating the stipulations on rest time in mid-shift and between two shifts or violating the stipulations on weekly holidays in Article 71 and Article 72 of the Labor Code;

2. Violating the stipulations on anniversary holidays in Article 73 of the Labor Code;

3. Violating the stipulations on annual leave in Article 74, Article 75 and Article 76 of the Labor Code;

4. Violating the stipulations on the employment of women laborers who are in the 7th month or more of pregnancy, or who are bringing up a child less than 12 months old as stipulated in Items 1 and 2, Article 115, of the Labor Code;

5. Employing women laborers, elderly laborers or handicapped laborers to do heavy or dangerous work, or work in which they have to contact toxic substances at variance with the stipulations in Article 113, Item 3, Article 124, and Item 3, Article 127, of the Labor Code;

6. Employing minors to do heavy or dangerous work, or work in which they have to contact toxic substances listed by the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Public Health as stipulated in Article 121 of the Labor Code;

7. Violating the stipulations on the handling of labor discipline stipulated in Item 2, Article 84, and Article 87 of the Labor Code;

8. Violating the stipulations on the working time for minors and handicapped laborers stipulated in Item 1, Article 122, and Item 4, Article 125 of the Labor Code.

Article 10.- A fine of 1,500,000 VND shall be imposed on one of the following violations:

1. Violating the stipulations on the working time as stipulated in Article 68 of the Labor Code;

2. Violating the stipulations on the loss-of-job allowance as stipulated in Item 1, Article 17; on the regime of severance allowances stipulated in Item 1, Article 42, of the Labor Code;

3. Employers who unilaterally terminate a labor contract at variance with the stipulations in Article 38 and Article 39 of the Labor Code;

4. Employers who impose forms of labor discipline at variance with Item 1, Article 84, and Article 85 of the Labor Code;

5. Employers who violate the stipulations on extra payments to laborers who work extra time or work at night as stipulated in Article 61 of the Labor Code;

6. Employers who fine laborers by cutting off their wages at variance with the stipulations in Item 2, Article 60, of the Labor Code;

7. The succeeding employer who refuses to continue carrying out the labor contract with the laborers till the two sides reach agreement on amending or terminating it, or to sign a new labor contract in case of a merger or splitting of the enterprise, or the transfer of its ownership or management or of the right to use the enterprise�s property as stipulated in Article 31 of the Labor Code;

8. Using fraudulent and deceptive means to pocket the insurance premiums of the laborers.

Article 11.- A fine of 2,000,000 VND shall be imposed on one of the following violations:

1. Enticing the laborers, making promises, or putting up false advertisements to deceive them as stipulated in Article 19 of the Labor Code;

2. Taking advantage of job placement service to commit law-breaking acts at variance with the stipulations in Article 19 of the Labor Code;

3. Abusing the title of job-teacher or job-trainer to make profit by exploiting the laborers, or enticing, compelling the job learners and trainees to commit law-breaking acts as stipulated in Article 25 of the Labor Code;

4. Maltreating laborers or forcing them to work as stipulated in Item 2, Article 5, of the Labor Code;

5. Committing discriminatory acts against women, infringing on the honor and dignity of women laborers at variance with the stipulations in Item 1, Article 111, of the Labor Code;

6. The employer sacks or unilaterally terminates a labor contract with women laborers just because they are married, pregnant, on maternity leave, or are bringing up a child under 12 months old, at variance with the stipulations in Item 3, Article 111, of the Labor Code;

7. With regard to those enterprises where social insurance buying is compulsory, the employer fails to pay social insurance premiums stipulated in Item 1, Article 141, or pays social insurance premiums at variance with the stipulations in Points (a) and (b), Item 1, Article 149, of the Labor Code;

8. The employer is 30 days or more late in paying social insurance premiums after the payment for the preceding month as stipulated in Article 37 of the Regulations on Social Insurance issued together with Decree No.12-CP of January 26, 1995 of the Government.

Article 12.- A fine of 3,000,000 VND shall be imposed on one of the following violations:

1. Paying the laborers less than the minimum rate or paying the minimum rate to the trained professional and technical workers at variance with the stipulations in Article 55 and Article 56 of the Labor Code unless otherwise stipulated by the Government;

2. Resorting to violence; damaging machinery, equipment and property of the enterprise or infringing on public order and safety while on strike at variance with the stipulations in Item 3, Article 173, of the Labor Code;

3. Discriminating or retaliating against those who take part in or who lead a strike, at variance with the stipulations in Item 1, Article 178, of the Labor Code;

4. Obstructing the exercise of the right to strike or compelling other people to strike, at variance with the stipulations in Item 2, Article 178, of the Labor Code;

5. Violating the decision of the Prime Minister on the temporary postponement or suspension of a strike, or deliberately going on strike in those enterprises banned from strike by Government decision.

Section II. VIOLATION OF THE STIPULATIONS ON LABOR SAFETY

Article 13.- A fine of 200,000 VND shall be imposed on one of the following violations:

1. The laborers violate the stipulations on labor safety in Item 1, Article 95, of the Labor Code;

2. The laborers refuse to use labor safety means supplied by the labor employer.

Article 14.- A fine of 1,000,000 VND shall be imposed on one of the following violations:

1. Violating the stipulations on the organization, training, guidance and popularization to the laborers on the stipulations and measures to ensure labor safety and to prevent possible labor accidents as stipulated in Article 102 of the Labor Code;

2. Failing to observe the stipulations on ensuring or arranging work suitable to the health of the laborers who have contracted occupational disease or have suffered a labor accident according to the conclusions of the Medical Evaluation Council stipulated in Item 1, Article 107, of the Labor Code.

Article 15.- A fine of 2,000,000 VND shall be imposed on one of the following violations:

1. Violating the stipulations on the supply of equipment and means for personal safety, and on the supply of material subsidies for those who work in an environment involving dangerous or toxic substances as stipulated in Article 101 and Article 104 of the Labor Code;

2. Refusing to grant payment for medical expenses incurred from the provision of first aid, intensive care and treatment till recovery for those laborers who fall victims to labor accidents or contract occupational diseases as stipulated in Item 2, Article 107, of the Labor Code;

3. Violating the stipulations on the granting of subsidies and compensations for those laborers when they fall victims to labor accidents or contract occupational diseases as stipulated in Item 2 and Item 3, Article 107, of the Labor Code;

4. Failing to report a labor accident when it happens, failing to register and make periodical reports on labor accidents and the incidence of occupational diseases as stipulated in Article 108 of the Labor Code;

5. Failing to periodically check and overhaul machinery, equipment, workshops and storages as stipulated in Item 1, Article 98, of the Labor Code.

Article 16.- A fine of 3,000,000 VND shall be imposed on one of the following violations:

1. Failing to provide covers for dangerous parts of machinery and equipment; failing to put up rules on labor safety in work places, in workshops with machinery and equipment, and in places involving dangerous and toxic conditions as stipulated in Article 98 of the Labor Code;

2. Violating the stipulations on the supply of technical and medical equipment and suitable labor safety means to ensure timely rescue in case of an incident or a labor accident at the dangerous or toxic work places likely to cause labor accidents as stipulated in Article 100 of the Labor Code.

Article 17.- A fine of 5,000,000 VND shall be imposed on one of the following violations:

1. Violating the labor safety norms in the production, use, maintenance, keeping, storage and transportation of the machinery, equipment, materials and substances which require strict observance of labor safety according to the list issued by the Ministry of Labor, War Invalids and Social Affairs;

2. Covering up or making false declarations about labor accidents and occupational diseases as stipulated in Article 108 of the Labor Code.

Article 18.- A fine of 10,000,000 VND shall be imposed on one of the following violations:

1. Failing to present an exposition on measures to ensure labor safety in building or upgrading establishments to produce, use, maintain, keep or store the machinery, equipment, materials and substances which require strict observance of labor safety according to the list issued by the Ministry of Labor, War Invalids and Social Affairs;

2. Violating the stipulations on the declaration, registration and application for permits for use of the machinery, equipment, materials and substances which require strict observance of labor safety according to the list issued by the Ministry of Labor, War Invalids and Social Affairs;

3. The employer violates the stipulations on labor safety, which causes a labor accident resulting in fatalities or a serious labor accident as stipulated in the legal documents currently in force.

Section III. VIOLATION OF THE STIPULATIONS ON ADMINISTRATIVE PROCEDURE OF STATE MANAGEMENT OF LABOR

Article 19.- A fine of 400,000 VND shall be imposed on one of the following violations:

1. Violating one of the stipulations in Article 182 of the Labor Code on:

a/ Declaration on the use of labor;

b/ Reporting changes in the employment of labor;

c/ Reporting the termination of the use of labor in case the enterprise ceases its operation.

2. In places employing 10 or more laborers, the employer violates the stipulations on the keeping of labor book, payment book and social insurance book as stipulated by the Ministry of Labor, War Invalids and Social Affairs.

Article 20.- A fine of 1,000,000 VND shall be imposed on one of the following violations:

1. Failing to register the labor regulations at the Labor, War Invalids and Social Affairs Service as stipulated in Item 3, Article 82, of the Labor Code;

2. Signing a collective labor arrangement without registering it at the Labor, War Invalids and Social Affairs Service as stipulated in Article 47 of the Labor Code;

3. Deciding to impose labor discipline outside one�s province as stipulated by law.

Article 21.- A fine of 3,000,000 VND shall be imposed on one of the following violations:

1. Violating the provisions of law on the dispatch of Vietnamese laborers to foreign countries for work, and on the admission of foreigners to work in Vietnam;

2. Foreigners working permanently for Vietnamese enterprises or organizations, or for foreign invested enterprises in Vietnam violate the stipulations on the application for and use of work permits stipulated in Item 1, Article 133, of the Labor Code and other stipulations of the relevant laws.

Chapter III

POWERS - PROCEDURE OF SANCTION

Article 22.-

1. Labor Inspectors can serve a warning or fine up to 200,000 VND and impose supplementary forms of sanction and other measures as stipulated in Point (c), Item 1, Article 34, of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

2. The Chief Labor Inspector and the Heads of the Services performing the function of State Inspection on labor can serve a warning and fine up to 10,000,000 VND, and impose supplementary forms of sanction and other measures stipulated in Point (c), Item 2, Article 34, of the Ordinance on the Handling of Administrative Violations of July 6,1995.

3. The Chief Labor Inspector and the Heads of ministerial-level agencies performing the function of labor inspection can serve a warning and fine up to 20,000,000 VND, and impose supplementary forms of fining and other measures stipulated in Point (c), Item 3, Article 34, of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

4. The Presidents of the People�s Committees of districts, precincts, towns and cities in provinces can serve a warning and fine up to 10,000,000 VND and impose supplementary forms of sanction and other measures stipulated in Point (c), Article 27, of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

5. The Presidents of the People�s Committees of the provinces and cities directly under the Central Government can serve a warning and fine up to 100,000,000 VND and impose supplementary forms of sanction and other measures stipulated in Point (g), Article 28, of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

Article 23.- In addition to applying the stipulations on fining stipulated in Chapter II of this Decree, depending on the character and seriousness of the violation, the persons authorized to impose sanctions as stipulated in Article 22 of this Decree can apply, or petition the authorized State agencies to apply, other administrative sanctions as stipulated in Item 4, Article 187, and Article 192 of the Labor Code.

Article 24.- The procedure of imposing administrative sanction on violations of labor legislation must comply with the stipulations in Article 45, Article 46, Article 47, Article 48, Article 49, Article 50, Article 53, Article 54, Article 55 and Article 56 in Chapter VI of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 25.- This Decree takes effect from July 1st, 1996.

Article 26.- If any organization or individual violates the stipulations of this Decree, or the persons authorized to impose sanctions as stipulated in Article 22 of this Decree violate the stipulations on the imposition of administrative sanctions againt violations of labor legislation, or those persons unauthorized to impose fines deliberately impose a fine, they shall be subjected to an administrative fine, disciplined or examined for criminal liability, depending on the character and seriousness of the violation; if they cause material damage, they must pay compensations.

Article 27.- Organizations or individuals that are subjected to administrative sanctions as stipulated in this Decree can complain about the sanctioning decision to the next higher level of the person who issues it.

The procedure of complaining and of settling a complaint about the decision to impose administrative sanction on a violation of labor legislation must comply with the stipulations in Article 87, Article 88, Article 89 and Article 90 of the Ordinance on the Handling of Administrative Violations of July 6, 1995.

Article 28.- The Ministry of Labor, War Invalids and Social Affairs shall have to cooperate with the Ministry of Finance to specify the receipt model and the procedure of paying fines to the State Budget.

Article 29.- The Ministers, the Heads of ministerial-level agencies and the agencies attached to the Government, and the Presidents of the People�s Committees of the provinces and cities directly under the Central Government shall have to implement this Decree.

On behalf of the Government,

For the Prime Minister,

Deputy Prime Minister,

PHAN VAN KHAI